Doug
M. Petrina, Assistant Attorney General, Salem, argued the
cause and fled the briefs for petitioner on review. Also on
the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem, argued the
cause for respondent on review. Eric Johansen, Deputy Public
Defender, fled the brief. Also on the brief was Ernest G.
Lannet, Chief Defender, Offce of Public Defense Services.

The
decision of the Court of Appeals is affirmed. The judgment of
the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings, consistently with
this opinion.

Case
Summary: Defendant was convicted of child sexual abuse.
Defendant appealed to the Court of Appeals and argued that
the trial court had erred in admitting evidence of uncharged
acts of abuse by defendant of the same victim and an
additional victim. Defendant contended that OEC 404(4)
requires "traditional" OEC 403 balancing, not a
narrower, "due process" balancing, and that the
trial court had not correctly conducted that balancing with
respect to the challenged other acts evidence. The Court of
Appeals agreed with defendant and reversed defendant's
convictions and remanded the case for a new trial. The state
petitioned for review, arguing that OEC 404(4) requires only
due process balancing to determine whether the challenged
evidence rendered the trial fundamentally unfair. In a
unanimous opinion written by Justice Martha L. Walters, the
Supreme Court affirmed the decision of the Court of Appeals.
The Court held that, in a criminal action, when the state
proffers evidence of uncharged acts, either to prove a
defendant's propensity to commit charged crimes under OEC
404(4), or for a nonpropensity purpose under OEC 404(3), and
a defendant objects to the admission of that evidence, the
trial court must conduct balancing under OEC 403, according
to its terms, to determine whether the probative value of the
challenged evidence is substantially outweighed by the danger
of unfair prejudice. The Court concluded that, in this case,
the trial court erred in finding that defendant's abuse
of the other victim was relevant for three non propensity
purposes. The evidence was not relevant for any of the three
purposes that the trial court identified, and the trial court
therefore erred in assigning the evidence weight for those
purposes in its OEC 403 balancing analysis. The Court
remanded the case to the trial court to give that court the
opportunity to consider new arguments from the parties about
the purposes for which the other acts evidence is relevant
and to correctly conduct the required balancing. The Court
instructed the trial court to determine the nature of the
proceedings that are necessary or appropriate on remand.

The
decision of the Court of Appeals is affirmed. The judgment of
the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings, consistently with
this opinion.

WALTERS, J.

In this
case we explain that, in a criminal action, when the state
proffers evidence of uncharged acts, either to prove a
defendant's propensity to commit charged crimes under OEC
4O4(4), [1] or for a nonpropensity purpose under OEC
4O4(3), [2] and a defendant objects to the admission
of that evidence, the trial court must conduct balancing
under OEC 403, [3] according to its terms, to determine
whether the probative value of the challenged evidence is
substantially outweighed by the danger of unfair prejudice.
We affirm the decision of the Court of Appeals, State v.
Baughman,276 Or.App. 754, 369 P.3d 423 (2016), reverse
the trial court's judgment of conviction, and remand this
case to the trial court for further proceedings.

I.
BACKGROUND

Defendant
was charged with 12 counts of child sexual abuse. The state
alleged that defendant had abused the victim, B, in Clatsop
County.

Before
trial, the state filed a motion to permit it to introduce
evidence that defendant also had sexually abused another
child, A. The state argued that that evidence was relevant
for a number of nonpropensity purposes under OEC 404(3)-to
establish defendant's intent, motive, common plan or
scheme, and the absence of mistake or accident. Defendant
countered that, because his defense was not mistaken identity
or lack of intent, but, instead, that the charged acts of
abuse had not occurred, the proffered evidence was not
relevant for a nonpropensity purpose. Further, defendant
argued, even if the evidence was minimally relevant, its
probative value was substantially outweighed by the danger of
unfair prejudice and it was therefore inadmissible under OEC
403.

Both A
and B testified at the hearing on the state's motion. B
testified that, when she was about five years old, defendant
had entered into a relationship with her mother and moved
into their family home in Umatilla County. Defendant began to
sexually abuse B when she was seven years old and still
living in Umatilla County. The abuse began with sexual
touching, and, by the time B was 12 and living in Clatsop
County, defendant had begun to abuse her "over and over
again [, ] repeatedly." B testified that defendant had
touched her sexually, forced her to touch him sexually, and,
in Clatsop County, repeatedly had forced her to have
intercourse with him.

A, the
second child, testified that defendant's abuse of her
also had occurred while defendant was in a relationship with
her mother and living with them in their family home. A was
in fifth grade when the abuse began. The abuse, including the
sexual touching of both defendant's and As sexual or
intimate parts, had continued until she was 13 or 14 years
old.

After
the hearing, the trial court issued a letter opinion. The
court agreed with the state that defendant's abuse of A
was relevant to prove defendant's "identity, intent
and to bolster the credibility of the victim, " and was
admissible under OEC 404(3). With respect to the issue of
intent, the court explained that it had conducted an analysis
under State v. Johns, 301 Or 535, 555-56, 725 P.2d
312 (1986), and determined, among other things, that
defendant's acts against A were similar to his acts
against B, and that the evidence about A was being offered
for a nonpropensity purpose, was not "overly
inflammatory, " and could be presented without undue
confusion, distraction, or unreasonable delay.

Later,
but also before trial, the state filed a written motion to
permit it to introduce evidence of defendant's uncharged
acts of sexual abuse against B in Umatilla County. The state
asserted that that evidence would "allow the jury to see
a clear, cohesive picture of how defendant perpetuated the
abuse for which he ha[d] been indicted in Clatsop
County." That evidence, the state represented, included
the acts of abuse to which B had testified at the prior
hearing and also the fact that defendant had told B that, if
she ever told anyone about the abuse, he would hurt her, and
that he had been physically abusive to her.

Defendant
opposed the state's motion and asserted that it was
untimely and required a hearing. The trial court responded
that it had assumed, from the prior hearing, that the
evidence of the uncharged abuse of B would be admitted to
explain to the jury "the path leading up to" the
charged crimes, but that the evidence also was admissible for
the same reasons that the court had articulated in permitting
the evidence of defendant's abuse of A.

At
trial, both A and B testified consistently with their
pretrial testimony. At the close of evidence, the court
instructed the jury that it could consider the uncharged
abuse of A only as evidence of defendant's intent in
abusing B. The court did not give the jury a limiting
instruction regarding the purposes for which it could
consider the uncharged abuse of B.

The
jury convicted defendant of eight of the 12 charges.
Defendant appealed to the Court of Appeals and argued that
the trial court had erred in admitting the evidence of the
uncharged abuse of both A and B as nonpropen-sity evidence
under OEC 404(3). While the case was pending before that
court, this court decided State v. Williams. 357 Or
1, 346 P.3d 455 (2015).

In
Williams, this court considered the interplay
between three evidentiary rules: OEC 404(3), OEC 404(4), and
OEC 403. OEC 404(3) makes other acts evidence
inadmissible to prove a defendant's character or
propensity to commit the charged crime. It provides:

"Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to
show that the person acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."

OEC 404(3).

OEC
404(4) was enacted after OEC 404(3). It makes relevant other
acts evidence admissible in criminal actions,
subject to specified exceptions. It provides:

"In criminal actions, evidence of other crimes, wrongs
or acts by the defendant is admissible if relevant except as
otherwise provided by:

"(a) [OEC 406 through 412] and, to the extent required
by the United States Constitution or the Oregon Constitution,
[OEC 403];

"(b) The rules of evidence relating to privilege and
hearsay;

"(c) The Oregon Constitution; and

"(d) The United States Constitution."

OEC 404(4).

In
Williams, the court recognized the conflict between
those two rules and held that the "legislature intended
OEC 404(4) to supersede OEC 404(3) in criminal cases, "
and to permit the admission of other acts evidence to prove a
defendant's propensity to commit a charged crime of
sexual abuse. 357 Or at 15. The court also concluded,
however, that OEC 4O4(4)(a) made the admission of such
evidence subject to specified evidentiary rules, including
OEC 403. Id. at 19. OEC 403 permits a court to
exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice.
It provides:

"Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay or needless
presentation of cumulative evidence."

OEC 403. In Williams, the court reasoned that OEC
4O4(4)(a) made OEC 403 applicable "to the extent
required by the United States Constitution, " and
concluded that, "in a prosecution for child sexual
abuse, the [United States Supreme] Court would hold that
subjecting proffered 'other acts' evidence to OEC 403
balancing is a due process requirement." Id. at
15-18. That balancing, the court explained, was balancing to
"determine whether the probative value of the evidence
is outweighed by the risk of unfair prejudice."
Id. at 19. The court expressly reserved, however,
the question whether the required balancing was
"traditional, " or "sub-constitutional, "
OEC 403 balancing, or some other, more limited, "due
process" balancing. Id. at 19 n
17.[4]

In
light of this court's decision in Williams, the
parties in this case filed supplemental briefs in the Court
of Appeals. Considering OEC 404(4) to be the operative
evidentiary rule, the parties squared off about whether the
balancing that OEC 404(4) requires is "traditional"
balancing under OEC 403, or "due process"
balancing, requiring the exclusion of other acts evidence
only when its admission would render the trial fundamentally
unfair and thereby violate due process.

The
Court of Appeals agreed with defendant that OEC 404(4)
requires "traditional" OEC 403 balancing and then
took up the legal issue that defendant had raised in his
initial opening brief about whether the trial court had
correctly conducted that balancing. Baughman, 276
Or.App. at 764-65. As noted, the trial court had considered
the uncharged abuse of A to be relevant for three
nonpropen-sity purposes and had carried out the required
balancing with those purposes in mind. The Court of Appeals
determined that the challenged evidence was relevant for only
one of those purposes-to prove defendant's intent under
the Johns analysis-but not for the other two
purposes-to prove identity and to bolster the victim's
credibility.[5]Id. at 771. The court reasoned
that evidence of defendant's uncharged acts was not
sufficiently novel or unique to be relevant to identity,
id. at 768, and that "the purpose of bolstering
the victim's credibility is merely propensity by a
different name, " id. at 772. Therefore, the
court explained, the trial court had not correctly considered
the "quantum of probative value of the evidence"
when it conducted the required balancing under OEC 403 and
had erred in admitting the other acts evidence. Id.
(internal quotation marks omitted). The Court of Appeals
reversed defendant's convictions and remanded the case
for a new trial. Id.

The
state petitioned for review in this court, renewing its
argument that the Court of Appeals was required to review the
trial court's admission of the challenged evidence, not
to determine whether the trial court had correctly engaged in
"traditional" balancing under OEC 403, but,
instead, to determine whether the admission of that evidence
rendered the trial fundamentally unfair and thereby violated
due process. The state also asserted that, even if
traditional balancing was ...

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